CASE NO.: Appeal (crl.) 728 of 2007 PETITIONER: DAYA SINGH LAHORIYA @ RAJEEV SUDAN @ VINAY KUMAR RESPONDENT: STATE OF RAJASTHAN DATE OF JUDGMENT: 14/05/2007 BENCH: C.K. THAKKER & P.K. BALASUBRAMANYAN JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 728 OF 2007
ARISING OUT OF
Special Leave Petition (Criminal) No. 4570 of 2006
Hon. C.K. Thakker, J.
1. Leave granted.
2. The present appeal is filed against the
judgment and order dated December 6, 2005 passed by a
Single Judge of the High Court of Judicature for
Rajasthan (Jaipur Bench) in S.B. Criminal Appeal No.
332 of 2005. By the said order, a Single Judge of the
High Court dismissed the appeal filed by the appellant
herein who had been convicted by the Additional
Sessions Judge (Fast Track Court) No.1, Jaipur City,
Jaipur in Session Case No. 27 of 2003.
3. It is not necessary to set out facts in detail
since we have stated all the facts in Criminal Appeal No.
867 of 2006 (Suman Sood @ Kamal Jeet Kaur v. State of
Rajasthan) and a cognate matter which we have decided
today. Suffice it to state that a complaint being First
Information Report (FIR) No. 84 of 1995 was registered at
Malviya Nagar Police Station, Jaipur on February 26,
1995 against Daya Singh, appellant herein, Suman Sood
@ Kamal Jeet Kaur (accused No.2) and one Harnek
Singh @ Surender Verma (absconding) for offences
punishable under Sections 353, 420, 468, 471, 472, 473,
474 read with Section 120B Indian Penal Code (‘IPC’ for
short), for offences punishable under Sections 4 and 5 of
the Explosive Substances Act, 1908, Sections 7 and 25 of
Arms Act, 1959 and Section 18 of TADA etc.
4. The case of the prosecution was that the
appellant herein along with his wife Suman Sood @
Kamal Jeet Kaur fabricated Registration Certificate for
purchasing several vehicles in order to carry out
conspiracy of kidnapping and abducting one Rajender
Mirdha, son of Shri Ram Niwas Mirdha to exert pressure
on the Government of India to release one Devendra
Singh Bhullar, an alleged Khalistani terrorist who was
being held in custody by the police. It was also alleged
that the appellant was found to be in possession of
prohibited arms and ammunition allegedly recovered
from House No. B-117, Model Town, Ashok Nagar during
police raid where the appellant was staying.
5. Initially, prosecution was launched in the
Designated Court at Ajmer since the provisions of TADA
were also invoked. The appellant herein, however,
challenged his prosecution under TADA. In Daya Singh
Lahoria v. Union of India & Ors., (2001) 4 SCC 516, this
Court upheld the challenge since the prosecution of the
accused could only be maintained in accordance with the
Extradition Treaty and the Decree of Extradition under
which the accused were extradited by the United States
of America to India.
6. Thereafter, the case was registered as Sessions
Case No. 27 of 2003 under the Indian Penal Code and
also under the Explosive Substances Act, 1908. The trial
Court, after considering the evidence on record, convicted
accused No.1 (appellant herein) as under:
Under Section 420 IPC : to 7 years R.I. and
a fine of Rs.500/-, in default of payment of
fine, to further undergo 6 months S.I.
Under Section 468 IPC : to 7 years R.I. and
a fine of Rs.500/-, in default of payment of
fine, to further undergo 6 months S.I.
Under Section 471 IPC : to 2 years R.I.
Under Section 4 of the Explosive
Substances Act: to 7 years R.I. and a fine of
Rs.500/-, in default of payment of fine, to
further undergo 6 months S.I.
7. So far as accused No.2 (Suman Sood) is
concerned, she was acquitted by the Court observing that
the prosecution was unable to prove the case beyond
doubt against her.
8. The appellant, being aggrieved by the order of
conviction and sentence, preferred an appeal in the High
Court of Rajasthan. Likewise, the State of Rajasthan,
being aggrieved by an order of acquittal passed by the
trial Court against Suman Sood instituted an application
for leave to appeal against acquittal.
9. A Single Judge of the High Court refused to
grant leave against accused No.2 (Suman Sood) holding
that the trial Court was right in recording an order of
acquittal against her and no case had been made out to
grant leave. Leave was accordingly refused.
10. So far as the appellant is concerned, at the
time of hearing of appeal, it was stated by the learned
counsel for the appellant that maximum sentence
awarded to the appellant was of seven years and all
sentences were ordered to run concurrently. The
appellant had already remained in jail for seven years
and thus he had already undergone the sentence of
imprisonment. He, therefore, did not press the appeal.
The High Court disposed of the appeal and observed;
“At the very outset, the learned counsel
Mr. G.S. Fauzdar for the accused appellant
Daya Singh contended that maximum
sentence in the present case was seven years
and all the sentences were ordered to run
concurrently and appellant has already
completed his sentence of imprisonment of
seven years, therefore, in these circumstances,
he does not press the appeal filed on behalf of
Daya Singh, challenging his order of conviction
and sentence passed by the trial Court as
mentioned above. In view of the above
statement of the learned counsel for the
appellant Daya Singh @ Vinay Kumar, the SB
Cr. Appeal No. 332/05 filed by Daya Singh is
hereby dismissed as not pressed”.
11. Ms. Kamini Jaiswal, appearing for the
appellant, challenged the order of conviction and
sentence. When her attention was invited by the Court to
the above paragraph, she submitted that she did not
dispute that such a statement was made on behalf of the
accused in the High Court, but submitted that, she be
permitted to argue the appeal, particularly when in other
Special Leave Petitions, leave was granted and appeals
were heard on merits. She also submitted that the
impugned judgment and order of conviction and sentence
are ex facie, illegal, unlawful and liable to be set aside.
She also submitted that considering the Extradition
Treaty of 1931 between United States of America and
Great Britain and the Extradition Order passed by the
American Court on June 11, 1997, the appellant could
not have been prosecuted in Indian Court and the trial of
the appellant was without authority of law. On merits
also, no case had been made out by the prosecution. The
other accused (Suman Sood) was acquitted on the same
evidence and leave to appeal against an order of acquittal
was refused by the High Court. The conviction recorded
by the trial Court against the appellant on the same
evidence is also vitiated and deserves to be set aside.
12. We would have considered the prayer of the
learned counsel particularly when the case relates to
administration of criminal justice and other matters were
pending. In the facts and circumstances, however, we are
of the considered opinion that no useful purpose would
be served in entering into the merits of the matter.
13. So far as extradition of the appellant is
concerned, we have already dealt with all contentions
relating to Extradition Treaty as well as Extradition Order
exhaustively in the other matter. There we have noted
that extradition of the appellant was also allowed for trial
of offences punishable under the Explosive Substances
Act, 1908.
14. In our opinion, therefore, prosecution,
conviction and sentence of the appellant for offences
punishable under Explosive Substances Act, 1908
cannot be said to be without jurisdiction or in excess of
authority of law. The said contention, therefore, has no
force and must be negatived.
15. So far as the other contention is concerned, we
have dismissed the appeal filed by the appellant against
his conviction for an offence punishable under Section
364A IPC wherein the appellant-accused has been
ordered to undergo imprisonment for life. No useful
purpose, therefore, will be served by entering into the
merits of the matter as the maximum punishment
awarded by the trial Court and confirmed by the High
Court in the present appeal was of seven years for the
offences said to have been committed by the appellant
and the appellant had already undergone the said
sentence. The counsel appearing for the appellant in the
High Court appears to have kept in view the above
position and did not press the appeal. In the light of the
finding recorded by us in the cognate matter, this appeal
is, more or less, academic and has become infructuous in
view of the following circumstances;
(i) the appellant has been convicted for an
offence punishable under Section 364A,
IPC and has been ordered to undergo
sentence of imprisonment for life and we
have upheld the said order; and
(ii) in the present appeal, the appellant has
challenged his conviction and sentence
whereby he has been ordered to undergo
imprisonment for seven years. The
appellant has remained in jail for seven
years and the said period is over.
16. For the foregoing reasons, the appeal deserves
to be disposed of and is accordingly disposed of without
entering into merits of the case.
